[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 17, 2006
No. 04-15351 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-22851-CV-ASG
MIGUEL SALDO,
Petitioner-Appellant,
versus
SECRETARY, James Crosby,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 17, 2006)
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Miguel Saldo, a state prisoner proceeding pro se, appeals the district court’s
dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254, challenging his 30-year state prison sentence for aggravated battery with a
firearm and possession of a firearm by a convicted felon. In his petition, Saldo
raised several claims of ineffective assistance of counsel. The district court
dismissed Saldo’s petition because he did not meet the standard the Supreme Court
set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Saldo was granted a certificate of appealability on the issue of
ineffective assistance of counsel, based on his claims that his Sixth Amendment
rights were violated because: (1) counsel threatened to withdraw if he testified; (2)
counsel failed to investigate and call a witness who would testify that he neither
had a gun nor shot the victim; (3) counsel opened the door for prejudicial evidence
from the victim; and (4) counsel failed to investigate and call witnesses who would
provide an alibi to show that he never threatened to kill the victim.
We review the district court’s denial of habeas corpus relief de novo, and its
findings of fact for clear error. Pruitt v. Jones, 348 F.3d 1355, 1356 (11th Cir.
2003), cert. denied, 125 S. Ct. 218, 160 L. Ed. 2d 60 (2004). Because Saldo filed
his petition after the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), the
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provisions of the act govern this appeal. In order to obtain habeas relief, Saldo
must demonstrate that the state court’s ruling “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court . . . or . . . was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(1), (2). An unreasonable application of clearly established federal law is
one in which the “state court identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts of the [petitioner’s]
case,” or “either unreasonably extends a legal principle from [the Supreme Court’s]
precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” Williams v. Taylor,
529 U.S. 362, 407, 120 S. Ct. 1495, 1520, 146 L. Ed. 2d 389 (2000). This standard
requires the application of federal law “to be not only erroneous, but objectively
unreasonable.” Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4, 157 L. Ed. 2d
1 (2003) (per curiam). A state court’s factual findings are presumed correct, and a
petitioner bears the burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Questions whose resolution depend heavily on
the trial court’s appraisal of witness credibility and demeanor are deemed questions
of fact. See Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999) (en banc).
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To prove ineffective assistance of counsel, the petitioner has the burden to
show that: (1) his counsel’s performance was deficient, and (2) there is a
reasonable probability that the outcome would have been different, but for
counsel’s deficient performance. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at
2064, 2068. “[T]here is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697, 104 S. Ct. at 2069. To prove the deficient performance prong, Saldo
must show that counsel made an error so serious that he was not functioning as the
counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S. Ct. at 2064. There
is a strong presumption that counsel’s performance was reasonable and adequate,
with great deference to reasonable strategic choices. Rogers v. Zant, 13 F.3d 384,
386 (11th Cir. 1994). Thus, “for a petitioner to show that the conduct was
unreasonable, [he] must establish that no competent counsel would have taken the
action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315
(11th Cir. 2000) (en banc).
Saldo first argues that he was denied effective assistance of counsel when
trial counsel threatened to withdraw if he testified at trial.1 However, the trial
1
As part of this argument, Saldo claims that the district court should have considered
whether the state court granted a fair evidentiary hearing. However, because Saldo did not raise
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record forecloses Saldo’s argument. Sworn statements on the record, as well as the
judge’s findings, pose a “formidable barrier in any subsequent collateral
proceedings.” Blackledge v. Allison, 431 U.S. 63, 74-75, 97 S. Ct. 1621, 1629, 52
L. Ed. 2d 136 (1977). Saldo initially denied that he had been coerced into not
testifying but subsequently recanted those statements. After giving Saldo an
opportunity to testify, the trial court found that Saldo was not coerced. These facts
alone suffice to subject Saldo’s claim to summary dismissal. As an additional
matter, however, at the evidentiary hearing for post-conviction relief, the state
court found that counsel testified credibly, and that Saldo did not. Saldo has not
presented any evidence other than his testimony to substantiate his claim of
ineffective assistance of counsel, nor has he presented any evidence that the state
court was incorrect. Consequently, Saldo has not overcome the presumption
established in 28 U.S.C. § 2254(e)(1).
Saldo next argues that he received ineffective assistance of counsel because
trial counsel failed to investigate and call a witness who would have testified that
he neither possessed a gun nor shot the victim.
The district court correctly found that the state court’s conclusions were
this argument when he applied for a certificate of appealability before the district court, we will
not consider the issue. See Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 702 (11th Cir. 2004)
(per curiam).
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neither contrary to, nor an unreasonable application of, Strickland. The trial record
shows that the trial judge informed Saldo he could call any other witnesses his
attorney did not call and even indicated that there were officers waiting to go get
the witnesses. Saldo’s sworn statement was that he did not wish to call anyone
else. Moreover, Saldo has failed to show prejudice. When Saldo shot the victim, a
police officer chased him down and arrested him within minutes, and two other
eyewitnesses identified him as the perpetrator. In light of these facts, Saldo has
failed to show a reasonable probability that contradictory testimony from one
witness would have led to a different result. See Strickland, 466 U.S. at 694, 104
S. Ct. at 2068.
In his third claim, Saldo argues that he received ineffective assistance of
counsel because his trial counsel opened the door to prejudicial information about
his altercation with an elderly woman when examining the victim.
The district court did not err in finding that the state court’s decision was
neither contrary to, nor an unreasonable application of, federal law. Saldo did not
show prejudice and so did not meet the second prong of the Strickland test.
Evidence that Saldo and the victim had been in a fistfight had already been
introduced to the jury, thus providing a motive. Saldo has merely made a
conclusory statement that evidence regarding his altercation with an elderly woman
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was prejudicial but has not shown a reasonable probability that the outcome would
have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Finally, Saldo argues that he received ineffective assistance of counsel
because trial counsel failed to investigate and call alibi witnesses to defend against
allegations that, between shooting the victim and trial, Saldo approached the
victim’s brother and threatened to kill the victim.2
As to this issue, the district court correctly found that the state court’s
conclusions were neither contrary to, nor an unreasonable application of,
Strickland. Again, Saldo was informed that he could call any witnesses that his
attorney did not call, and he stated under oath that he did not wish to do so.
Furthermore, Saldo has not shown how such information could create a reasonable
probability that the jury would not convict him of shooting the victim. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Upon review of the record and consideration of the parties’ briefs, we
conclude that the district court did not err in finding that Saldo’s Sixth Amendment
rights were not violated based upon his claims of ineffective assistance of counsel.
Accordingly, we affirm.
AFFIRMED.
2
Saldo has requested an evidentiary hearing as part of his argument on this claim. We
will not consider this request, however, because “[a]ppellate review in a [habeas] proceeding is
limited to the issues specified in the certificate of appealability.” Diaz, 362 F.3d at 702.
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